Bullard & Lord against Spoor.Headnote
In an action dollar act, 5;t the°defendant to demand a aftCT°ajuryof 6 has been deplaintiff andha venire issued.The justicemay, on has chailenge0tand set aside a t^cati”. m
If neither party object, this silence concedes the fact of intoxication.
A justice may appoint a guardian ad litem for an infant; and if the infant does not nominate a guardian, the justice may appoint such person as he shall shall think proper, on the motion of the plaintiff.
But this must be a real, not a fictitious person.
On certiorari to a Justice’s Court. Spoor sued Bullard On & Lord, in the Court below under the 50 dollar act. the parties appearing, the Justice requested Lord, who was an infant, to nominate a guardian ad litem, which he declined. The plaintiff then moved, the Justice to appoint one for him, and he appointed John Doe, a fictitious person, to be his guardian. Issue was then joined, and the plaintiff ¿eman(jed and had a venire for a jury of six. The cause was adjourned for two days, when the parties appeared, and the defendants then demanded a jury of 12 men. This the Justice overruled, and proceeded to draw a jury of six men. One of the jurors drawn was so intoxicated as to be unfit t0 serve. and the Justice gratuitously directed him to stand 1 ° J _ aside, to which neither party objected. Verdict and judg ment for plaintiff.
R. Cossit, for the plaintiffs in error.
W. M. Allen, contra.
The defendants were too late in demanding a jury of 12 men. The demand should have been made be-core any venire had issued. (Strong v. Beardsley, 18 John. 130 .) The Justice was also right in refusing to permit a drunken man to serve on the jury. The fact of intoxication was conceded, by neither party objecting to his exclusion. „
The cause of Mockey v. Grey, ( 2 John. 192 ,) settles the principle, that a Justice has the power of appointing a guardian ad litem for an infant; and the only question is, whether such guardian must be a real person, or whether the duty to appoint is mere matter of form, and may be satisfied by the use of a fictitious name. We think ihe guardian must he a real person; (2 Sell. Pr. 68. Am. ed.) and that for this reason the judgment must be reversed.
Judgment reversed.